Select Committee on Home Affairs Appendices to the Minutes of Evidence


APPENDIX 15

Memorandum submitted by Paul Goggins MP, Parliamentary Under Secretary of State, Home Office

  During the Home Affairs Select Committee session on 29 April, at which my predecessor Mr Benn gave oral evidence on the Sexual Offences Bill, you asked what led the Government to revert to the situation where defendants in rape cases can be named. Mr Benn undertook to write to you setting out the circumstances that led to this reversal.

  Anonymity for both complainants and defendants in rape cases was introduced by sections 4, 5 and 6 of the Sexual Offences (Amendment) Act 1976. Anonymity for complainants had been recommended by the Heilbron Committee in their 1975 "Report of the Advisory Group on the Law of Rape". The Heilbron Committee had emphasised the special character of the offence. Even in the case of a wholly innocent victim whose assailant was convicted, public knowledge of the indignity she had suffered in being raped might be extremely distressing and even positively harmful, and the risk of such public knowledge could operate as a severe deterrent to bringing proceedings. Furthermore since in a criminal trial guilt had to be proved to the satifaction of the jury, an innocent victim could never be sure that a conviction would follow their complaint. If the accused was acquitted the distress and harm caused to the victim could be further aggravated, and the danger of publicity following an acquittal could be a risk the victim was not prepared to take. Also, since there was no way of distinguishing in advance between genuine victims and others, the protection—subject to certain exceptions—needed to be a general one.

  The Heilbron Committee were therefore satisfied that if a procedure for keeping the name of the complainant out of the newspapers could be devised, then more rape cases might be reported to the police, as victims would be more willing to come forward if they knew that there was hardly any risk that the judge would allow their name to be disclosed.

  The Committee did not consider that defendants in rape cases should have anonymity. In particular, the important justification for anonymity as an incentive to victims to report crimes of rape so as to ensure that rapists did not escape prosecution did not apply to defendants. In the first place, defendants were generally named, even in the case of murder and other reprehensible crimes. Even in blackmail cases where the complainant was invariably anonymous it was always the practice for the defenants' name to be disclosed, and they did not think it desirable to recommend changes in the law of rape which would make it more anomalous, without strong justification. The only reason for giving him anonymity was the argument that he should be treated on an equal basis.

  The Bill as introduced adopted the Heilborn Committee' proposals, but during its passage through Parliament provision for the anonymity of defendants was incorporated by way of a concessionary amendment.

  In 1984, the Criminal Law Revision Commttee looked at the subject in broad outline as part of their report on the law relating to and penalties for sexual offences. They endorsed the reasoning of the Heilborn Committee that led to complainants in rape cases being granted anonymity to encourage them to come forward.

  They also agreed with the arguments of the Heilbron Committee against giving anonymity to defendants in rape cases.

  They felt that the "tit-for-tat" argument—that the man should be granted anonymity because the woman has it—was not valid, despite its "superficial attractiveness" (since rape was but one of many offences where a defendant who was acquitted might nevertheless suffer damage to their reputation. There was no reason why rape should be distinguished from other offences in this respect.) They thought that it was erroneous to suppose that the equality should be with the victim—it should be with other accused persons, and an acquittal would give the defendant public vindication.

  Reporting restrictions on defendants in sexual cases were repealed by Parliament following the Criminal Law Revision Committee (CLRC)'s recommendation. The restrictions had caused practical difficulties, for example, if a man escaped custody before convicition, the police could not warn the public he was a suspected rapist unless the judge exercised his power to lift the restrictions. It had also led to a number of anomalies, for example, a man who was acquitted of rape but convicted of indecent assault still benefited from reporting restrictions and could not be named. The CLRC took the view that those accused of sexual offences should not be be singled out for special protection while other defendants could be identified. The then Government agreed. It was not persuaded that these defendants should be treated differently, and introduced legislation in the Criminal Justice Act 1988 which repealed the measure.

  I hope that my explanation has clarified the problems which arose with anonymity for defendants in rape cases and which led to reversal of the law to remove anonymity in such cases.

June 2003


 
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